Friday, August 31, 2012

Why tied selling rules give the DOJ a knotty problem in the Apple e-books litigation

Do you have to sell me your house just because I asked? If you think the answer is yes, you may have something in common with a problem the Department of Justice will have in the Apple e-books litigation.

Although price-fixing gets all the headlines, another antitrust issue called "tied selling" is pretty important too. Tied selling occurs when you link two items together into a single transaction. There's nothing wrong with that in principle, but intellectual property raises all sorts of complicated issues because of the exclusive rights of an owner.

Thursday, August 30, 2012

Why is it okay for you to set your own price but not for Apple or a publisher?

Setting your own price for your books seems like the most logical thing in the world. The $0.99 and $2.99 book price points are widely-used by authors to make money, and the free promotion days are like gold. But the Department of Justice has sued Apple and the e-book publishers for making this possible.

Why are these companies being charged with a criminal offence for doing something that thousands of authors now do every day?

Wednesday, August 29, 2012

Five questions that may explain some aspects of the Apple e-books litigation

As I've been reviewing the documents and the posts around the Web on the Apple e-books price-fixing litigation, I've seen a few things that it seems people don't understand. To help give some background I'll explain so that you can have an easier time following this important litigation.

First a summary for those of you who don't know the full allegations. The Department of Justice is alleging that 5 major publishing firms: Hachette, HarperCollins, Macmillan, Penguin, and Simon & Schuster, along with Random House who isn't charged, all wanted to break Amazon's $9.99 pricing for e-books. At the same time Apple wanted to get into the e-books market, and offered to the publishers that it would allow them to set their own pricing for e-books so long as the publishers ensured the same e-books wouldn't be available cheaper elsewhere. According to an email from Steve Jobs quoted by the DOJ in its Complaint: "yes, the customer pays a little more, but that's what you want anyway." The DOJ has brought charges against these six companies for violating the US antitrust laws.

Tuesday, August 28, 2012

1DollarScan, Cablevision, and two reasons you can't always get what you want

Books are portable. But one company wants to make your books even more portable than they already are. So why is the Authors' Guild so angry about it, and do they have any right to be?

In an interesting deal announced last week, a service called 1DollarScan has closed a partnership with Evernote to take your physical books, scan them, drop them into your Evernote account, and then destroy the original copy you sent them (it would appear that it actually gets destroyed as part of the scanning process). 1DollarScan apparently already had deals with services like Dropbox and some others. But linking to Evernote, one of the most widely-used note-taking services out there, appears to have brought a lot of attention to 1DollarScan, including some it may wish it had never attracted.

According to Publishers' Weekly, the Authors' Guild has made some statements that 1DollarScan is violating copyright law and infringing the author's right to choose whether their book should be made available digitally. Unpacking this statement gives me a chance to look at two often-misunderstood issues around content creation: whether making copies breaks the law, and why media companies don't think like people.

Monday, August 27, 2012

DOJ says: Apple's objections to the e-book price-fixing settlement are rotten to the core

Especially after its recent success against Samsung, Apple may well think its interests in the e-book price-fixing lawsuit are best-served by taking its chances in court. It may come to regret this.

For those of you who need to catch up... In April the US Department of Justice brought price-fixing claims against Apple and 5 publishers: Hachette, HarperCollins, Macmillan, Penguin, and Simon & Schuster. Even though 3 of the 5 publishers were willing to settle (Hachette, HarperCollins, and Simon & Schuster), the DOJ still brought the claims against all 5 of them.

Under a US law called the Tunney Act, any settlement of claims in an antitrust lawsuit requires the court to receive comments from the public and other interested parties. Those comments are in, and the DOJ has filed the papers to get the settlement enforced. Apple and various other entities replied, and on August 24 the DOJ responded. And this response makes one thing very clear:

If Apple wants a fight, the DOJ will give it one.